The Court Decision on Spent Fuel and Vermont Yankee

The Court Decision and the Local Reaction

Dry Cask illustration from NRC

In March of this year, Vermont and other petitioners brought suit against the Nuclear Regulatory Commission (NRC).  Their suit claimed that NRC rulemaking on spent fuel storage was insufficient. On Friday, June 8 the Federal Court of Appeals in the District of Columbia ruled in favor of the petitioners.  According to the court, the NRC rules on spent fuel storage will have to be revised. You can read the court's decision here.

Some of the local reactions have been unrealistically optimistic that this ruling means Vermont Yankee is doomed. There's a spirit of: "We told you so and now Vermont Yankee won't be able to operate any more!"  A recent Vermont Digger article was titled: Federal ruling could give state officials basis for denying Entergy license to operate Vermont Yankee. Meanwhile, in a Vermont Public Radio article, Nuclear Waste Ruling Could Strengthen VT Court Case, Vermont Attorney General Sorrell said that the lack of long-term storage was an economic risk to Vermont, and the Vermont Public Service Board can look at economic issues. A direct quote from Sorrell:

"Here you've got under what was the NRC decision, 20 years of relicensing, and then the ability to store spent fuels on the Vermont Yankee site for another 60 years," he said. "So 80 years out of spent nuclear fuels being stored there, 60 of those supposedly after Vermont Yankee is no longer operating. And is that good for the state economy?"

(Note.  I find this remark completely illogical in terms of economic consequences, so don't ask me to explain it.  I quoted it, and that's all I can do.)

The Real Court Decision
The Vermont Yankee opponents are wrong about the consequences of this decision.  They are loud (as usual) but they are wrong.

In my view, there are three facets to the court decision, none of which have any immediate consequences to any operating power plant. They may have economic consequences in the future, but these consequences are unpredictable.

The background is this.  In 2010, the NRC ruled that spent fuel could be stored on site for sixty years after a plant was closed or until a permanent repository was available. Regarding this action, the court said:

Centralized fuel pool
(pool for many reactors)
Areva

• The rule-making for fuel storage on site is a major federal action, and therefore must have either an environmental impact statement or an official finding of "no environmental impact."
• In 2010, NRC extended of spent fuel storage on-site from thirty to sixty years after a plant has closed.  The court ruled that this NRC time extension was not justified nor sufficient.  The NRC must address the possibility that no permanent repository will ever be available, and do an environmental impact assessment of that possibility.
• The NRC can do the type of rule-making it usually does for general issues, and does not have to address the storage at each plant on a case-by-case basis.

All these factors are as applicable for any other plant as they are for Vermont Yankee. None of them challenge the NRC's role in assessing radiological risk from nuclear plants.  In other words, nothing in this ruling allows the state to take any kind of pre-emptive action about radiological safety.

The NRC also has the right to appeal this decision to the Supreme Court.

The NRC has work to do. 
No matter how many commentators say that the Vermont Public Service Board  should be influenced by this decision, the decision is completely about NRC rule-making. It defers to the NRC for further rule-making.  This decision does not give the state of Vermont any right  to pre-empt federal regulation of radiological safety. It does not require that Vermont Yankee fuel storage be assessed as a separate case.

(Another note.  I'm not a lawyer. Still, I thought this decision was pretty clear, so I feel reasonably confident in what I wrote.)

Spent fuel shipment canister
Areva

Pressuring Congress?

Maybe this ruling is about pressuring Congress for a spent fuel storage facility. You might look at Will Davis Atomic Power Review post on the ruling.  He starts by repeating the introductory statement (from the ruling)

This is another in the growing line of cases involving the federal government’s failure to establish a permanent repository for civilian nuclear waste.

In other words, you can look at the ruling as a set-back for the NRC.  Or you can look at the ruling as a boost, provided by the courts, for  opening a spent-fuel repository.

More Resources:

Two excellent articles on the subject are Federal Court Throws Cold Water on Nuclear Waste Ruling at EnergyBiz, and Court Forces a Rethinking of Nuclear Fuel Storage at the New York Times.  My local paper, the Valley News, has a clearly-written op-ed with the history of the NRC's rulings on spent fuel storage: Confidence Game: Court Rightly Challenges the NRC.